Negotiation Tool

Opinion 11-461’s abstract explains:

Parties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer’s assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer.

Gregory Hanthorn, co-chair of the ABA Section of Litigation’s Ethics and Professionalism Committee, spoke with me about the new opinion. He explained that Opinion 11-461 “addresses the idea that parties represented by counsel may still benefit from direct “principal to principal” discussions. There will be times when litigants or opposite parties to a transaction may benefit from discussing issues without their lawyers present.” For example, parties may want to negotiate directly to cement a settlement agreement or break through an impasse in negotiations.

Under the Model Rules, the idea for clients to communicate directly can originate with the client or the attorney. Greg explains that “Lawyer A may advise Client A that Client A can reach out to Client B directly.”

This can be a useful arrow in your negotiation quiver. After weeks, months, or even years of negotiating, clients may be ready to come to an amicable agreement. But with the attorneys doing all of the negotiations, that may not be clear to either side. So the next time you are at an impasse in discussions, this tactic could be worth trying. But be careful. As Gregory explains: The Opinion stresses that in this instance Lawyer A must not overreach, and cannot, in effect, ‘use’ Client A as a mere conduit to allow Lawyer A to funnel information to Client B.”

Drawing the Line

Clearly there is a line between giving your client advice and using your client as a puppet to have unauthorized communications with a represented party. But where is it?

Opinion 11-461 advises lawyers to look at the purpose of the rule prohibiting communications with a represented party. That prohibition exists to protect “a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.” Some examples of overreaching include “assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.”

Always remember that the ABA’s formal opinions are not binding. Consult your state’s rules to see how your local ethics rules have interpreted the issue of client communications.

With regard to the suggestion that, when one form of traditional negotiation has reached an impasse, it might be prudent or productive to try another form of traditional negotiation, I would respectfully suggest that readers might instead want to consider some of the non-traditional approaches that are offered at http://www.fairoutcomes.com. Real-world experience and several recent academic studies show that the procedures embodied in those new approaches are much more efficient than traditional forms of negotiation, and they do not pose any of the problems that the rule promulgated by the ABA recognizes and seeks to address.